[Federal Register Volume 79, Number 10 (Wednesday, January 15, 2014)]
[Notices]
[Pages 2696-2699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-00638]
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LIBRARY OF CONGRESS
Copyright Office
[Docket No. 2014-1]
Strategic Plan for Recordation of Documents
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notice of Inquiry.
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SUMMARY: The United States Copyright Office is requesting public
comment on proposed key elements relevant to reengineering the function
of recording documents pertaining to copyright pursuant to 17 U.S.C.
205. In a separate notice that will be published soon, the Office will
also announce a series of public hearings on these elements, scheduled
shortly after the end of the comment period on this Notice of Inquiry.
The elements have been developed with the aid of previous comments
obtained during the Office's two-year Special Projects process,
particularly the Special Project on Technical Upgrades to Registration
and Recordation Functions. (That Project's Notice of Inquiry and the
comments received in response are available at http://www.copyright.gov/docs/technical_upgrades/.)
In particular, the Office is seeking comment and holding public
hearings on the following elements: (1) A guided remitter
responsibility model of electronic recordation; (2) the use of
structured electronic documents that contain their own indexing
information; (3) the linking of recordation records to registration
records; (4) the use of standard identifiers, and other metadata
standards, in recorded documents and the catalog of such documents; and
(5) potential additional incentives to record documents pertaining to
copyrights. Further explanation of these elements is to be found below
in the SUPPLEMENTARY INFORMATION section of this Notice.
The Office appreciates in particular comments from parties who
record documents and the professionals who assist them in doing so;
from parties experienced with electronic recordation in other areas,
such as that of real property; from those who maintain databases of
copyrighted works for licensing or other purposes; from those who have
developed or are developing metadata standards for copyright management
purposes; and from those who use the Copyright Office's catalog and
collection of recorded documents for any purpose.
DATES: Comments on the Notice of Inquiry and Requests for Comments are
due on or before March 15, 2014. The Office will hold public hearings
on the east and west coasts following the close of the public comment
period on dates to be determined.
ADDRESSES: All comments shall be submitted electronically. A comment
page containing a comment form is posted on the Copyright Office Web
site at http://www.copyright.gov/docs/recordation. The Web site
interface requires submitters to complete a form specifying name and
organization, as applicable, and to upload comments as an attachment
via a browse button. To meet accessibility standards, all comments must
be uploaded in a single file in either the Portable Document File (PDF)
format that contains searchable, accessible text (not an image);
Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII text file
format (not a scanned document). The maximum file size is 6 megabytes
(MB). The name of the submitter and organization should appear on both
the form and the face of the comments. All comments will be posted
publicly on the Copyright Office Web site exactly as they are received,
along with names and organizations. If electronic submission of
comments is not feasible, please contact the Copyright Office at 202-
707-8350 for special instructions.
FOR FURTHER INFORMATION CONTACT: Robert Brauneis, Abraham L. Kaminstein
Scholar in Residence, by email at [email protected], or call the
U.S. Copyright Office by phone at 202-707-9536.
SUPPLEMENTARY INFORMATION:
I. Background
Since 1870, the Copyright Office has recorded documents pertaining
to copyright, such as assignments, licenses, and grants of security
interests in works under copyright. It has accepted such copyright-
related documents from remitters for recordation; returned documents
marked as recorded to remitters; made copies of those documents
permanently available for public inspection; and ensured the
preparation of indexes to assist the public in finding relevant
documents. Congress has encouraged the recordation of copyright-related
documents by bestowing certain legal advantages on recorded documents.
In some cases, such as that of notices of terminations of transfer, it
has required the filing of documents as a condition of their legal
effectiveness. A principal purpose of these incentives and requirements
is to ensure that those who are interested in licensing, purchasing, or
gaining security interests in works under copyright can learn of the
current state of the titles in those works. Thus, the Copyright Office
has an important interest in ensuring that the public record of
copyright transactions is as complete and as accurate as possible.
In 1870, documents remitted for recordation arrived at the
Copyright Office in paper form, and Copyright Office employees prepared
index or catalog entries for those documents by manually transcribing
selected information from the documents. Almost 150 years later, that
is still the case. Many other aspects of the recording process have
changed. Recorded documents used to be manually transcribed in full;
they now are scanned and stored electronically. The index to recorded
documents used to appear in the front of bound volumes or on index
cards; it is now maintained as part of an online electronic database
known as the Copyright Office Catalog,
[[Page 2697]]
which also contains copyright registration records. Yet documents must
still be remitted for recordation in paper form, and Office employees
must still read and interpret those documents and manually transcribe
selected information from them to create catalog entries in the
Copyright Office Catalog. In this respect, the Copyright Office's
document recordation service has lagged behind its copyright
registration service. The Office began accepting registration
applications online in July 2008, but for budgetary reasons it dropped
plans to reengineer recording services. Thus, modernizing and improving
recordation services is a top concern of the Copyright Office.
II. Discussion
Over the past two years, the Copyright Office has sought comments
on technological upgrades to the recordation function, and has held
focused discussions with copyright owners, users of copyright records,
technical experts, public interest organizations, lawyers, and
professional and industry associations. Participants in that process
have expressed a number of serious concerns about the current
recordation system, and have offered a variety of helpful suggestions
for improvement.
A. Leading Concerns About Recordation. The most prominent recurring
concerns about document recordation are cost, processing time,
inconvenience of remitting, and cataloguing inaccuracies.
1. Cost. Because recordation has remained labor-intensive while
many other Copyright Office functions have increased in efficiency,
recordation has become relatively more expensive. While for many
decades the basic recordation and registration fees were the same, the
most basic recordation fee is now over two times that of the most basic
registration fee. That fee difference is a direct result of estimates
of the cost of performing those services. Stakeholder comments reveal
serious concerns about the fee level for recordation. They also reveal
that high fees have deterred some from recording documents altogether,
and have caused others to take actions that leave significant gaps in
the public record. Those actions include recording transfers for large
numbers of works without specifically identifying them, and submitting
new registrations for previously registered works in the name of
assignees rather than recording transfer documents.
2. Processing Time. Many who remit documents to be recorded have
also expressed serious concerns about the time needed for processing
remitted documents. They have noted that it can take a year or longer
for the Copyright Office to return a remitted document marked as
recorded, and that it can take even longer for information about the
document to become available online in the Copyright Office Catalog.
Comments have suggested that the longest delays are caused by the need
to transcribe manually the titles of works to which a remitted document
pertains.
3. Inconvenience of Remitting. Document remitters have also
expressed concerns about the difficulty and inconvenience of remitting
documents for recordation, and about the mismatch between Copyright
Office requirements and their own business practices. Many remitted
documents are originally produced electronically in a word processing
format, and could easily be saved in a cross-platform format such as
Adobe Portable Document Format and transmitted electronically to the
Copyright Office for recording. Other documents could be scanned and
transmitted electronically. However, the Copyright Office currently
only accepts paper documents, so document remitters must print all
documents and send them in paper form to the Copyright Office, which
increases the labor and cost involved in recording. The Copyright
Office also currently requires an actual ``wet'' signature on either
the remitted document or on an accompanying certification. Some
copyright transactions are now accomplished with electronic signatures,
and remitters must therefore prepare special versions of the documents
with actual signatures on paper solely for purposes of recording. This
also contributes to the difficulty and cost of recording.
4. Cataloging Inaccuracies. The existing system of preparing
Copyright Office Catalog records for recorded documents through manual
transcription from paper documents also results in significant numbers
of inaccuracies in those records. Commenters have complained about such
inaccuracies as typographical errors in names and titles; incorrectly
transcribed registration numbers; incorrectly transcribed dates; and
incorrect indexing of titles under ``the'' and other articles. Such
inaccuracies can cause users of the Catalog to miss documents relevant
to their concerns, or to gain mistaken impressions of the nature of
those documents.
B. Concerns regarding the optimum identification of works to which
recorded documents pertain. Stakeholders have expressed a number of
related concerns regarding how works are identified in recorded
documents. These include concerns about whether documents concerning
particular works can be located at all; whether document records can be
linked to registration records pertaining to the same works; and
whether Copyright Office records can be integrated with information
about works derived from other sources.
1. Identification of works to which recorded documents pertain.
Given current requirements, incentives, and practices, it is sometimes
very difficult to identify specific works the ownership of which is
affected by recorded documents. Under current law and regulations,
documents will be accepted for recordation whether or not they identify
particular works the ownership of which they affect. A document will be
rejected for lack of work identification only if the omission of an
identifier renders the document incomplete on its face--when, for
example, the document refers to a list of title in an Appendix that is
missing. Sections 205(c) and 205(d) of the Copyright Act do create
incentives to identify a work to which a document pertains by title or
registration number. Section 205(c) provides that a recorded document
provides constructive notice of the facts stated in it only if the
document or an attachment ``specifically identifies the work to which
it pertains so that, after the document is indexed by the Register of
Copyrights, it would be revealed by a reasonable search under the title
or registration number of the work.'' 17 U.S.C. 205(c). Section 205(d)
provides that only those transfers recorded in such a manner to give
constructive notice under section 205(c) will be protected against
conflicting transfers. 17 U.S.C. 205(d).
Commenters have questioned the usefulness of these incentives in
practice. Fewer than half of the works that have been specifically
identified in recorded documents since 1978 are identified by
registration number. While virtually all specifically identified works
are identified by title, there is no requirement that a title be
unique. Moreover, many works are not generally known by the titles that
are submitted as identification. The titles submitted for photographs,
for example, are often no more than strings of digits, which are not
helpful for search purposes.
2. The linking of document records with registration records. Since
1978, document remitters have identified by copyright registration
number almost four million works affected by remitted documents.
However, remitters have submitted those registration numbers in many
different formats, which often
[[Page 2698]]
differ in matters of spacing, hyphenation, and other punctuation from
the official format used by the Copyright Office. Each registration
number is transcribed into the Copyright Office Catalog in exactly the
format in which that the remitter submitted it, and document
specialists do not verify that the number submitted is a valid
registration number. As a result, the Copyright Office Catalog does not
contain links between recorded documents and registrations, and even
valid registration numbers found in document records may need to be
reformatted before they can be used to locate related registration
records. This can render it more difficult to make a positive
identification of a work affected by a recorded document, and to locate
all documents affecting title in a work.
3. Integration of Copyright Office records with information about
works from other sources. There are many privately maintained databases
that contain information about large numbers of works under copyright.
These include databases maintained by various types of rights
management organizations such as ASCAP, BMI, SESAC, the Copyright
Clearance Center, the Harry Fox Agency, and Art Resource; by companies
that own and license large numbers of copyrighted works, such as Getty
Images and Corbis; and by music identification app developers such as
Shazam, Midomi, and SoundHound. None of the records contained in these
databases is currently linked to registration or document records in
the Copyright Office Catalog. The lack of such links means that users
of the privately-maintained databases cannot easily find Copyright
Office records about the works represented in those databases, and
users of the Copyright Office Catalog cannot easily find licensing
information contained in the privately-maintained databases, thus
making Copyright Office records less commercially useful and relevant.
Links between databases are impeded due to the lack of common work
identifiers and metadata standards. Although some recorded documents
may include standard work identifiers such as International Standard
Musical Work Codes (ISWCs) and International Standard Text Codes
(ISTCs), document records in the Copyright Office Catalog do not
include these numbers. Registration records in the Copyright Office
Catalog may include standard work identifiers, but only about a million
of them do, out of over seventeen million records, and many of these
codes do not strictly speaking represent works. Rather, they represent
physical deposits, such as books identified by International Standard
Book Numbers (ISBNs).
C. Concerns about the Sufficiency of Statutory Incentives to Record
Transactions. Existing statutory incentives to record documents
pertaining to copyright are limited to protection against conflicting
transfers and nonexclusive licenses under conditions specified by
section 205(d) of the Copyright Act, provision of constructive notice
under section 205(c) of the Act, and under the interpretation of some
courts, perfection of security interests in registered works. In 1989,
Congress removed the requirement to record any documents in the chain
of title from a work's author to an owner of that work as a
precondition of that owner filing an infringement action. Commenters
have questioned whether the remaining incentives to record are
sufficient to induce parties to significant copyright transactions to
disclose them, and thus to ensure that those who are interested in
licensing, purchasing, or gaining security interests in works under
copyright can learn of the current state of titles in those works.
III. Subjects of Inquiry
In response to the concerns articulated above, the Copyright Office
is currently considering several specific elements of a strategic plan
for improvement of recordation services, and for improvement of the
quality of copyright information provided to the public through
recordation. The Office is particularly interested in comments on the
following key elements:
1. A Guided Remitter Responsibility Model of Electronic
Recordation. As noted above, the high cost and long processing time
currently associated with copyright document recordation stem in large
part from a process in which recordation specialists must read paper
documents and manually transcribe selected information from them to
electronic catalog records that become part of the Copyright Office
Catalog. Electronic submission of such information by remitters could
certainly reduce the time need to process a document for recordation.
However, checking information submitted electronically by remitters
against each remitted document itself would still be a time-consuming
process. Remitted documents do not come in any particular format, and
there is no single standard for the language used in those documents or
the order in which documents use language with legal effect. As a
result, recordation specialists would still have to spend substantial
time reading and interpreting the documents to check submitted catalog
entry information, such as the names of the two or more parties to the
transaction, the role of the parties as grantors or recipients of the
interests being transferred, the nature of the interests that are being
transferred, and the titles, registration numbers, or other identifiers
of the works in which interests are being transferred.
Because of the process of comparing submitted catalog information
against each individual remitted document is irreducibly time-
consuming, the Copyright Office is considering adopting a model under
which remitters would be responsible in the first instance for the
accuracy of the catalog information that they submit electronically.
Recordation specialists would not check that information against
remitted documents on a case-by-case basis, but would rather engage in
systemic quality control, performing targeted spot checks and
continuously refining predictive models of which inaccuracies were
likely to occur in which types of documents.
While remitters might be worried that inadvertent errors would go
uncorrected, electronic submission of information allows for a variety
of types of guidance that would greatly reduce the number of
inaccuracies entering the Copyright Office Catalog. For example, when a
limited number of answers to a question are valid, electronic forms can
provide enumerations such a drop-down boxes or buttons, rather than
empty fields, to eliminate entries that are invalid or contain
typographical errors. Many entries can be validated against lists of
valid values or templates of valid formats, and rejected or questioned
if the entries are not found in the lists or entered in valid formats.
Crucial information can be required to be entered twice, and
consistency between the entries can be checked. Parties that record
documents frequently could carefully enter repeated information such as
names and addresses once, and then access that stored information when
recording subsequent documents, to ensure consistency between catalog
entries. Such a guided remitter responsibility model could reduce the
cost of recordation to a small fraction of the current cost. Electronic
recordation fees would be reduced accordingly. Paper-based recordation
would continue to be available, but the fee would likely be a multiple
of several times that of electronic recordation.
The Copyright Office is seeking comments on this model of
electronic recordation. Comments are welcome, not only on features that
are unique to this particular model, but on features
[[Page 2699]]
that are common to electronic recordation more generally, and that
would require statutory or regulatory amendment. These include the
acceptance of electronic signatures and the protection of personally
identifiable information.
2. Structured Electronic Documents. The Copyright Office is also
considering whether to adopt standards for and accept structured
electronic documents in which tagged indexing or cataloging information
is integrated into the documents themselves. Such documents contain
several linked layers or folders. The name of a granting party
displayed in the sentence that grants an interest in a copyrighted
work, for example, is drawn from a field that identifies that name as a
granting party name for cataloguing purposes.
Many government agencies that record documents conveying interests
in real property have adopted standards for and are accepting such
structured electronic documents. However, many of those agencies record
millions of documents a year, whereas the Copyright Office currently
records fewer than 15,000 documents a year, though those documents
represent transactions involving several hundred thousand works.
Moreover, a relatively small number of intermediaries--banks and title
insurance companies--are involved in almost every real estate
transaction, which makes the adoption and implementation of standards
relatively easy, while fewer copyright transactions seem to involve
such intermediaries. The Copyright Office is seeking comments on the
feasibility of adopting standards for and accepting structured
electronic documents pertaining to copyright.
3. Linking of Document Records to Registration Records. The Office
is considering whether it should link records of documents pertaining
to registered works to the registration records for those works. In
particular, it is seeking comments on whether it should require by
regulation that document remitters provide registration numbers in a
standardized format for all registered works to which their documents
pertain.
4. Use of Standard Identifiers and Other Metadata Standards. The
Office is considering whether it should adopt incentives or
requirements with respect to the provision of standard identifiers,
such as International Standard Musical Work Codes and International
Standard Audiovisual Numbers, in recorded documents. Comments are
welcome regarding the degree to which the provision of such identifiers
would aid in uniquely identifying affected works and in linking
Copyright Office Catalog information about works to other sources of
information about such works. Comments are also welcome on whether such
incentives or requirements might be more appropriate or helpful with
regard to some types of works than with regard to others. The Office is
also considering whether it should adopt or ensure compatibility with
metadata standards more broadly, and welcomes comments on the utility
of metadata standards and on particular metadata projects that it
should consider.
5. Additional Statutory Incentives to Record Documents Pertaining
to Copyright. A number of academic commentators have proposed that
Congress create additional incentives or requirements for recording
documents pertaining to copyright. Congress could reinstate the
requirement, dropped in 1989, of recording all documents in the chain
of title from the author to the current owner of copyright as a
precondition of filing in infringement lawsuit. It could also condition
the provision of certain remedies, such as statutory damages and
attorneys' fees, on the recordation of any and all documents that
transferred ownership of works to those eligible to sue for
infringement at the time infringement commenced. Perhaps the broadest
proposal is to provide that no transfer of a copyright interest will be
valid unless a note or memorandum of that transfer is recorded with
sufficient description of the interest granted and identification of
the parties from and to whom the interest is granted. The Copyright
Office is seeking comment on the benefits and costs of such proposals,
and on their compatibility with the treaty commitments of the United
States.
Dated: January 10, 2014.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2014-00638 Filed 1-14-14; 8:45 am]
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